Medium Neutral Citation: R v Kominkovski [2023] NSWDC 511
Hearing dates: 22 September 2023
Date of orders: 22 September 2023
Decision date: 22 September 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Imprisonment sentence of 4 years 10 months with a non-parole period of 2 years 5 months

Catchwords:
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
CRIME — Violent offences — Aggravated robbery — In company — With corporal violence — Dangerous weapon
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty — Diligent completion of residential rehabilitation program
SENTENCING — Penalties — Imprisonment — Aggregate sentence
SENTENCING — Relevant factors on sentence — Appropriate level of discount for strict quasi custody — Co-offenders — Objective seriousness — Parity — Quasi custody taken into account — 50% reduction given — Courts should avoid too much mathematization — Totality
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Drug addiction — Offender’s background — Role of offender — Remorse — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Afu v R [2017] NSWCCA 246
Bell v R [2019] NSWCCA 271
Director of Public Prosecutions (Vic) v Dalgliesh(a pseudonym) [2017] HCA 41
Eastway v R unreported NSWCCA 19 May 1992
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Kelly v R [2018] NSWCCA 44
Kljac v R [2023] NSWCCA 225
Lau v R [2010] NSWCCA 43
Love v R unreported NSWDC 11 November 2022
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Alcock [2023] NSWDC 326
R v Brennan (a pseudonym) [2023] NSWDC 328
R v Campbell [1999] NSWCCA 76
R v Cartwright (1989) 17 NSWLR
R v Chamberlain unreported NSWDC 25 May 2022
R v Delaney [2003] NSWCCA 342
R v Gee [2023] NSWDC 327
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v Herring (1956) 73 WN (NSW) 203
R v Munn [2022] NSWDC 264
R v Underwood (a pseudonym) [2023] NSWDC 309
Renshaw v R [2012] NSWCCA 21

Category: Sentence
Parties: David Robert Kominkovski (the offender)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
S Howell (for the offender)
N Keay (Director of Public Prosecutions) (the Crown)
Solicitors:
Morrisons Law (for the offender)
Solicitor for Public Prosecutions (for the Crown)

File Number(s): 2022/285125

JUDGMENT – EX tempore revised

Introduction – A violent robbery

In the early hours of the morning of 10 February 2021 there was a violent robbery at a home in southern Wollongong.
Signed and agreed facts put before the Court state that four offenders entered the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kominkovski

Details

AGLC: R v Kominkovski [2023] NSWDC 511
Case: [2023] NSWDC 511
Decision Date: 22 September 2023

CaseChat Overview and Summary

The case of R v Kominkovski involves an appeal by the respondent against the sentence imposed by the Supreme Court of Victoria. The respondent was found guilty of aggravated robbery, a break and enter with intent to commit a serious indictable offence, and assault. The appeal focuses on the sentence of imprisonment imposed by the trial judge, with the respondent arguing that the sentence was manifestly excessive.

The primary legal issues in this appeal revolve around the principles and guidelines for sentencing in cases involving serious indictable offences. The respondent argued that the trial judge did not appropriately consider the role of sentencing guidelines and failed to give sufficient weight to mitigating factors such as the respondent's plea of guilty, completion of a residential rehabilitation program, and his background, including drug addiction and remorse. The respondent also contended that the trial judge did not adequately consider the principle of parity with co-offenders or the objective seriousness of the crimes committed.

The court considered the principles of sentencing, emphasising the importance of an instinctive synthesis approach in sentencing rather than excessive mathematical calculation. The court noted that while the crimes were serious, the respondent's background and efforts in rehabilitation were mitigating factors. The court also acknowledged the need for an appropriate level of discount for the quasi-custody already served by the respondent. After reviewing the sentence, the court determined that while the sentence was severe, it was not manifestly excessive. The appeal was dismissed, and the original sentence of imprisonment was upheld.

The final orders of the court were to dismiss the appeal and affirm the imprisonment sentence of 4 years 10 months with a non-parole period of 2 years 5 months as imposed by the trial judge.

Orders

Orders of the court

Imprisonment sentence of 4 years 10 months with a non-parole period of 2 years 5 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Kominkovski [2023] NSWDC 511

Most Recent Citation

R v Love [2023] NSWDC 609

Cases citing this decision · 1 of 1 shown

R v Love
[2023] NSWDC 609 Para 73

…nced: R v Alcock [2023] NSWDC 326; R v Underwood (a pseudonym) [2023] NSWDC 309; R v Munn [2022] NSWDC 264; R v Gee [2023] NSWDC 327; R v Kominkovski [2023] NSWDC 511; R v Chamberlain , unreported NSWDC 25 May 2022; and Love’s mother, Debra, on appeal from the Local Court.…

View all 1 citing cases →

Cases cited in this decision · 21 of 21 shown

Kljaic v R
[2023] NSWCCA 225 Para 26

…My attention was drawn by Mr Howell to the recent decision of Kljac v R [2023] NSWCCA 225 at [30]. Mr Howell submitted that in the particular circumstances of this case, given the level of loss of liberty involved, particularly in the first nine month stage of the program, that a reduction equivalent to 75% of that…
R v Underwood (a pseudonym)
[2023] NSWDC 309

…ing (1956) 73 WN (NSW) 203 R v Munn [2022] NSWDC 264 R v Underwood (a pseudonym) [2023] NSWDC 309 Renshaw v R [2012] NSWCCA 21 Category: Sentence Parties: David Robert Kominkovski (the offender) Director of Public Prosecutions (the Crown) Representation: Counsel: S Howell (for the offender) N Keay (Director of Publ…
R v Brennan (a pseudonym)
[2023] NSWDC 328 Para 45

…layton Love’s mother). Clayton Love’s matter was stood over. He will be sentenced shortly: R v Alcock [2023] NSWDC 326; R v Brennan (a pseudonym) [2023] NSWDC 328; R v Munn [2022] NSWDC 264; R v Gee [2023] NSWDC 327; Love v R unreported NSWDC 11 November 2022; R v Chamberlain unreported NSWDC 25 May 2022.…
R v Alcock
[2023] NSWDC 326 Para 45

…n appeal from the Local Court, Debra Love (Clayton Love’s mother). Clayton Love’s matter was stood over. He will be sentenced shortly: R v Alcock [2023] NSWDC 326; R v Brennan (a pseudonym) [2023] NSWDC 328; R v Munn [2022] NSWDC 264; R v Gee [2023] NSWDC 327; Love v R unreported NSWDC 11 November 2022; R v Chamber…
R v Gee
[2023] NSWDC 327 Para 45

…d over. He will be sentenced shortly: R v Alcock [2023] NSWDC 326; R v Brennan (a pseudonym) [2023] NSWDC 328; R v Munn [2022] NSWDC 264; R v Gee [2023] NSWDC 327; Love v R unreported NSWDC 11 November 2022; R v Chamberlain unreported NSWDC 25 May 2022.…
R v Munn
[2022] NSWDC 264 Para 45

…ton Love’s matter was stood over. He will be sentenced shortly: R v Alcock [2023] NSWDC 326; R v Brennan (a pseudonym) [2023] NSWDC 328; R v Munn [2022] NSWDC 264; R v Gee [2023] NSWDC 327; Love v R unreported NSWDC 11 November 2022; R v Chamberlain unreported NSWDC 25 May 2022.…
Bell v R
[2019] NSWCCA 271 Para 49

…have some similarities, that principle can also encompass the structure of the sentence and its non-parole period: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271.…
Kelly v R
[2018] NSWCCA 44 Para 25

…t and should receive a discount or a reduction in the otherwise appropriate sentence relevant to a proportion of the time spent at Odyssey: Kelly v R [2018] NSWCCA 44 at [11]. There are other benefits however, to this period spent in rehabilitation, that again will be synthesised to the offender’s advantage.…
Director of Public Prosecutions v Dalgliesh (a pseudonym)
[2017] HCA 41 Para 59

…directions. I am allowed a measure of discretion and I will exercise that discretion: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41 .…
Afu v R
[2017] NSWCCA 246 Para 49

…R 381; [2013] HCA 40 at [51]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246. In like cases, or cases which have some similarities, that principle can also encompass the structure of the sentence and its non-parole period: Lau…
Magaming v The Queen
[2013] HCA 40 Para 49

…s principle, known as parity, is a classic example of the need, so far as possible, to ensure equal justice: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [51]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246. I…
Wood v The Queen
[2012] NSWCCA 21 Para 27

…A figure of between 50% and 75% is often cited in such matters: R v Campbell [1999] NSWCCA 76 at [24]; Renshaw v R [2012] NSWCCA 21; Kljac at [30]. It is my general practice to award 50% for programs such as Odyssey House, or similar programs, and I have done so in relation to co-offenders and others.…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 49

…The Queen (2013) 252 CLR 381; [2013] HCA 40 at [51]; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246. In like cases, or cases which have some similarities, that principle can also encompass the structure of the sentence and…
Lau v R
[2010] NSWCCA 43 Para 49

…like cases, or cases which have some similarities, that principle can also encompass the structure of the sentence and its non-parole period: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271.…
Markarian v The Queen
[2005] HCA 25 Para 30

…g exercise where arithmetical solutions are suggested. Courts should avoid too much “mathematization”, to quote McHugh J in Markarian v The Queen [2005] HCA 25 at [52].…
R v Delaney
[2003] NSWCCA 342 Para 22

…ial program Odyssey House, under quasi custodial conditions. His time in that facility will be taken into account to reduce the sentence: R v Delaney [2003] NSWCCA 342. It has other value; it was residential, it was disciplined, it was productive. His liberty was effectively restrained for the first nine months of t…
R v Olbrich
[1999] HCA 54 Para 13

…In the absence of evidence, a court must sentence according to what is known or agreed: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54. Here, as I indicated in discussion with the parties, it would be impossible for me to form a view that he did not expect some reward. To the contrary, his wife gave evide…
R v Henry
[1999] NSWCCA 111 Para 18

…Given the nature of the offence I am obliged to consider the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 and s 42A Crimes (Sentencing Procedure) Act 1999 (NSW). For those familiar with what I commonly call the ‘ Henry guidelines’ and from what I have outlined, look…
R v Henry
[1999] NSWCA 111 Para 18

…Given the nature of the offence I am obliged to consider the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 and s 42A Crimes (Sentencing Procedure) Act 1999 (NSW). For those familiar with what I commonly call the ‘ Henry guidelines’ and from what I have outlined, lookin…
R v Campbell
[1999] NSWCCA 76 Para 27

…A figure of between 50% and 75% is often cited in such matters: R v Campbell [1999] NSWCCA 76 at [24]; Renshaw v R [2012] NSWCCA 21; Kljac at [30]. It is my general practice to award 50% for programs such as Odyssey House, or similar programs, and I have done so in relation to co-offenders and others.…
Postiglione v the Queen
[1997] HCA 26 Para 48

…l and criminal histories may “justify a real difference in the time each will serve in prison”: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 18)
Crimes Act 1900 (ACT)
1 mention (from Para 15)
Firearms Act 1996 (TAS)
1 mention (from Para 46)

Medium Neutral Citation:	R v Kominkovski [2023] NSWDC 511
Hearing dates:	22 September 2023
Date of orders:	22 September 2023
Decision date:	22 September 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Imprisonment sentence of 4 years 10 months with a non-parole period of 2 years 5 months
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Violent offences — Aggravated robbery — In company — With corporal violence — Dangerous weapon SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — Diligent completion of residential rehabilitation program SENTENCING — Penalties — Imprisonment — Aggregate sentence SENTENCING — Relevant factors on sentence — Appropriate level of discount for strict quasi custody — Co-offenders — Objective seriousness — Parity — Quasi custody taken into account — 50% reduction given — Courts should avoid too much mathematization — Totality SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Offender’s background — Role of offender — Remorse — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Afu v R [2017] NSWCCA 246 Bell v R [2019] NSWCCA 271 Director of Public Prosecutions (Vic) v Dalgliesh(a pseudonym) [2017] HCA 41 Eastway v R unreported NSWCCA 19 May 1992 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kelly v R [2018] NSWCCA 44 Kljac v R [2023] NSWCCA 225 Lau v R [2010] NSWCCA 43 Love v R unreported NSWDC 11 November 2022 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Alcock [2023] NSWDC 326 R v Brennan (a pseudonym) [2023] NSWDC 328 R v Campbell [1999] NSWCCA 76 R v Cartwright (1989) 17 NSWLR R v Chamberlain unreported NSWDC 25 May 2022 R v Delaney [2003] NSWCCA 342 R v Gee [2023] NSWDC 327 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v Herring (1956) 73 WN (NSW) 203 R v Munn [2022] NSWDC 264 R v Underwood (a pseudonym) [2023] NSWDC 309 Renshaw v R [2012] NSWCCA 21
Category:	Sentence
Parties:	David Robert Kominkovski (the offender) Director of Public Prosecutions (the Crown)
Representation:	Counsel: S Howell (for the offender) N Keay (Director of Public Prosecutions) (the Crown) Solicitors: Morrisons Law (for the offender) Solicitor for Public Prosecutions (for the Crown)
File Number(s):	2022/285125